Equality Bill [Lords] - Standing Committee A

[Janet Anderson in the Chair]

Equality Bill [Lords]

Clause 43 - Religion and belief

Question proposed, That the clause stand part of the Bill.

Dominic Grieve: I welcome the Minister, who has been a good companion during the discussion of many a Bill in these Committee Rooms over the past few years. In the course of this morning, and probably this afternoon, when we come to consider the question of discrimination on the grounds of religion, I hope to provide him with a reassurance that most of the amendments are of a probing nature.
Although no amendments have been tabled to the clause, it is worth pointing out that most of the amendments that follow focus on the question of differentiating—if there is a difference to be found—between religion and religious belief, and belief. With that in mind, I do not intend to take up more of the Committee’s time on this clause. It may even be necessary, depending on the answers that I get from the Minister in the course of subsequent debates, to come back to clause 43 on Report if I am not happy with the definitions provided.

Paul Goggins: It is very welcome to see you in the Chair, Mrs. Anderson. I do not think that I have been a Minister under your chairpersonship before. I look forward to that, as indeed I look forward to further probing from the hon. Member for Beaconsfield (Mr. Grieve) and, no doubt, probing and other remarks and comments from my hon. Friends. I do not wish to detain the Committee on this clause, although, as the hon. Gentleman suggests, it is at the heart of all the debates that we are likely to have over the succeeding Committee sittings. The definition of religion that we have adopted is necessarily broad. It accords with article 9 of the European convention on human rights. I look forward to further discussions on the implications of the definitions that we have adopted as our proceedings unfold.

Question put and agreed to.
Clause 43 ordered to stand part of the Bill.

Clause 44 - Discrimination

Dominic Grieve: I beg to move amendment No. 97, in clause 44, page 26, line 25, leave out ‘or belief’.

Janet Anderson: With this it will be convenient to discuss the following amendments:
No. 98, in clause 44, page 26, line 29, leave out ‘or belief’.
No. 99, in clause 44, page 26, line 30, leave out ‘or belief’.
No. 100, in clause 44, page 26, line 34, leave out ‘or belief’.
No. 102, in clause 44, page 26, line 35, leave out ‘or belief’.
No. 103, in clause 44, page 26, line 39, leave out ‘or belief’.
No. 104, in clause 44, page 26, line 42, leave out ‘or belief’.

Dominic Grieve: I have to make a confession to the Committee: I went through the Bill at random and simply decided to delete references to the words “or belief” in the text. I did that because I wanted to initiate a debate—in which I hope the Minister can help the Committee—on what the Bill is saying. I appreciate that when one looks back at clause 43, one sees that religion is defined as “any religion” and belief as
“any religious or philosophical belief”,
but it seems that what underpins the legislation—and the reason the provision has been included—is the desire to prevent discrimination on the grounds of a person’s religion or religious belief. At least, we are talking about something that centres on somebody’s belief, or lack of it, in a deity and matters associated with it.
The difficulty with clause 44 is that it seems, according to one reading of it, that the extent of the discrimination covered goes far beyond religious belief or indeed a philosophical belief centred on a deity or a lack of a deity. Is not the expression “philosophical belief” so wide that it would have to cover, for example, somebody’s political beliefs? If somebody believed that all property was theft, would they not be covered by the use of the word “belief” in the clause? Another example would be if somebody believed that men were not all born equal and that there were differences and inherent inequalities based on people’s race or other characteristics. Would that belief be covered by the use of the word “belief” in the clause?
There is a serious issue. We discussed this matter in the context of religious hatred. Many people think that there is an entitlement to discriminate against people who hold certain sorts of obnoxious views. If those views relate to a deity or to a lack of religion, I can see the logic in why that should be covered. However, if this clause extends that provision, and we say, “You can’t discriminate for the purposes of this Act,” which goes on to cover goods, facilities and services and other things, “because you dislike a person’s beliefs, which  may in fact be of a very practical kind,” we must ask ourselves whether that is what Parliament should be doing.
The Minister, in answering the brief points I made about clause 43, said that the reason the definition was drafted to comply with definitions in the European convention on human rights. I wonder whether that is the case, because the belief systems with which we are dealing must relate to religion. Religion or the lack of it is difficult to define. It is about a person’s view of the universe in which he is living—whether there is a god, a hereafter and so on. I wait for reassurance from the Minister.
Are we not defining belief so that it extends to anything in which a person happens to believe? Let us take some practical examples. If a Jewish lady running a hotel or boarding house knew that the people coming along believed that Jews were untermenschen—a lower form of life—should she be required to admit them to her establishment? If somebody was known to believe that all property was theft, it might reasonably be supposed that people might be a bit wary about letting them into their premises, whether it is a hotel, boarding house or even a shop. They might think that shoplifting was about to take place.
We must address the practical issue. The Minister may be able to provide me with some reassurance, and I wait to hear from him; but I find it hard to believe that “belief” needs to be quite so widely drawn to give effect to what the Government intend, in terms of protecting people’s religion or lack of it. I hope that we may be able to focus our debate on that.

Paul Goggins: I am grateful to the hon. Gentleman for at least exposing to debate an important issue about underpinning this aspect of the Bill—the difference, and the complementarity, between religion and belief. His amendments would strike out the word “belief” from the Bill wherever it occurs. He must have had an amusing time going through to find out every example of where “belief” occurs.
To limit the provisions and protections only to those whose beliefs are aligned to an organised religion would be an unfair restriction. Those whose beliefs are equally strongly held but more philosophical—for example, humanists—should also be protected. The amendments would mean that a person with strongly held religious beliefs could lawfully discriminate against another person simply because that other person’s beliefs were not religious or associated with an organised religion. There are many in our society who hold no formal religious beliefs—atheists, humanists and so on—and whose belief structure actively rejects religion in any guise or form. It would be wrong for such people to be exposed to discrimination, and they should have the equal protection of the law.
Although philosophical belief takes us wider than organised religion, it is not limitless. The hon. Gentleman and I and other members of the Committee discussed those issues at great length in considering the Racial and Religious Hatred Bill. We made it clear that the courts determine what religion is. We know from case law that religion has to be consistent with  human dignity; it must have a cogency, seriousness and sense of cohesion about a particular series and set of beliefs. We would expect a philosophical belief to betray the same hallmarks, although it does not revolve around belief in a particular deity.
As I said, then, philosophical belief is not limitless; for example, it would not be possible to claim that belief in the supremacy of a certain football team qualified as a religion or philosophical belief. Nor, indeed, could that claim be made about belief in the principles of a political party, the point raised by the hon. Gentleman. We know that because of the case in April this year of Baggs v. Fudge, in which a member of the British National party sought to challenge the refusal of an organisation to interview him for a job under the Employment Equality (Religion or Belief) Regulations 2003, which incorporate wording about “philosophical belief” similar to that in the Bill. That individual’s argument, that his support for the BNP constituted a philosophical belief, was thoroughly rejected by the tribunal, so there is no case to suggest that any such political belief would qualify as a religion or belief under the Bill. We are not making up the provisions on the spur of the moment; as I said, there is a precedent for them in the 2003 regulations.

Dominic Grieve: I can understand the rationale in Baggs v. Fudge, which concerned an adherence to a political party, as I understand it. That seems to me to be capable of being distinguished from an adherence to a particular philosophical belief. There may be no such difference, but the Minister may understand why I remain slightly troubled by this point. It is one thing to say, “We refused to interview him because he was a member of the BNP” and another to say, “We refused to interview him because we knew that he had a belief in white supremacy”. Maybe there is no distinction between those two statements, but I see a capacity for one. I wonder whether we are in danger of opening a door to people to make such arguments.

Paul Goggins: Often those two things, a particular belief and association with an organisation, are inextricably linked. In the end it will always be for the court, the employment tribunal or other judicial setting to determine whether the provisions of a particular employment law are relevant to a particular case. Our job here is to set out in legislation the overall provisions, and that we do, in a way that does not give limitless extent to the concept of philosophical belief, but ensures that it is consistent with the hallmarks of religious belief, such as cogency, which I quoted earlier.
The hon. Gentleman tempted me into the boarding house argument. I suspect that we will discuss boarding houses later. My clear view, which will no doubt be rehearsed later, is that, where somebody operates a boarding house, they are not in a position, nor should they be, to act in a discriminatory way.

Evan Harris: I had not intended to contribute to the debate, but having heard the Minister I rise to endorse what he said and to put a couple of points to the hon. Member for Beaconsfield.
I did not hear the hon. Gentleman deal with this matter in speaking to the amendments. Does he feel that the provision, as he would amend it, would capture those who have non-theistic beliefs that are their basis for ethical behaviour? That is somewhat different from belief in a political party or a football team. Does he feel, as, for example, the British Humanist Association does, that his amendments would undermine that position?
In its briefing to me, the association is keen to ensure that the Committee resists the amendments. It considers that it is wrong to classify non-religious beliefs as religious, and in a way it is nonsensical to do so. That is why the words “or belief” are so important. I am sure that we will come back to this point later, but I hope that the hon. Gentleman recognises that there are instances of people without religious beliefs being discriminated against in the delivery of public services. We will no doubt discuss school transport.
The hon. Gentleman will be aware that in the Army chaplains are provided for those who believe in the afterlife, but there is no equivalent service for those who believe that the life that they are putting on the line is the only one, although they may have a similar need for counselling.
I heard what the hon. Gentleman said and agree with his points about religious hatred, but I say to him that when we are dealing with discrimination on the basis of religion there must be an alternative approach that deals with belief. Because of his belief and learned status, the hon. Gentleman will be aware of case law in this area which interprets belief narrowly and not vacuously. If he could cite some case law in which he believes that interpretation went too far, that would be of interest to us all and would give us pause. However, as the Minister said, case law has been able to make a clear distinction between beliefs of a philosophical nature, including non-theistic beliefs and humanism, and other beliefs to which he rightly drew our attention. He wants to be clear that the Bill does not give protection to such beliefs. Obviously, we would not want the Bill to spill over into protection against discrimination on the basis of, for example, political beliefs. Where would it end? There is a strong case for keeping the wording as it is.

Dominic Grieve: I am grateful to the hon. Gentleman for providing some reassurance about the British Humanist Association. These are probing amendments. I find that when Bills are in Committee I am rung up by all sorts of people who express horror at amendments I have tabled. The Christian Institute was on to me last week expressing anxiety about some of the amendments that we will come to later. I had to point out politely that they are probing amendments designed to stimulate debate.
The hon. Gentleman made some good points. I want to make one thing clear: it was never and would never be my intention to remove from humanists protection concerning their beliefs. I fully acknowledge that the  rather provocative way in which I tabled the amendments might have that unintended consequence, which is why I intended, having listened to the debate, to go away and think further about whether anything else needed to be done to the clauses.

Evan Harris: I should have said that when speaking to the British Humanist Association I pointed out that I was certain that these were probing amendments, and the association understood that. It looks forward to the hon. Gentleman’s support on other parts of the Bill, and he can rest assured that its view is that he is not seeking to undermine protection for humanists.

Dominic Grieve: I am glad to hear that.
So far as my anxieties are concerned, it is very nice to have judges who interpret the law, who interpret words and who do so narrowly. One difficulty, and this should not allow Parliament to abdicate its responsibilities in the matter, is that we play around with words in statute. On one showing, and giving the words here their ordinary English meaning, it would be possible for a future judicial interpretation to widen the scope of what constitutes a belief in a way that no member of the Committee wants.
That anxiety may be far-fetched, but it exists and Parliament should not simply give up searching for better ways of expressing what we are trying to do. I still have in the back of my mind the slight reservation that there is a way of finding a better definition of the sort of beliefs we want to cover here, but I certainly do not have the formula at the moment. I have listened carefully to what the Minister said and, as usual, he was reassuring. I thank him and the hon. Member for Oxford, West and Abingdon (Dr. Harris) for our discussion, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve: I beg to move amendment No. 105, in clause 44, page 26, line 41, leave out from ‘justify’ to end of line 42.

Janet Anderson: With this it will be convenient to discuss the following amendments:
No. 106, in clause 44, page 27, line 14, leave out subsection (5).
No. 107, in clause 44, page 27, line 15, leave out “not in good faith,”.

Dominic Grieve: We come on to discrimination. Subsection (3) states:
“A person (“A”) discriminates against another (“B”) for the purposes of this Part if A applies to B a provision, criterion or practice”
and goes on to provide a list of what those are. Paragraph (d) refers to a provision, criterion or practice
“which A cannot reasonably justify by reference to matters other than B’s religion or belief.”
I wondered whether the second half of the sentence was necessary in the overall context of the clause, which is why my amendment would take it out and leave
“which A cannot reasonably justify”.
In doing so, I was again being slightly provocative because that allows scope to ask whether there might be justifiable reasons relating to religion or belief which would allow discrimination to take place. That brings us back to something I touched on earlier, which was discussed during consideration of the Racial and Religious Hatred Bill. Some people’s religion or belief may be extremely unpleasant or obnoxious. Could that provide a possible justification? That takes us into the areas of discrimination that are intended to be covered in this part of the Bill.
The other two amendments relate to the latter part of the clause, subsections (4) and (5). Subsection (4) states:
“A person (“A”) discriminates against another (“B”) if A treats B less favourably than he treats or would treat another and does so by reason of the fact that, or by reason of A’s knowledge or suspicion that, B ... has brought ... or intends to bring, proceedings under this Part”.
It covers somebody who is discriminated against on the basis that they are making a complaint. Subsection (5) provides a saving clause, stating:
“Subsection (4) does not apply where A’s treatment of B relates to B’s making or intending to make, not in good faith, a false allegation.”
That puzzled me a little. Let us say that an employer sees that someone is behaving badly and decides to discipline him. The employee says that he is being discriminated against on the grounds of his religion. The employer believes that allegation to be false, and wishes to continue to discriminate against him; indeed, he probably wants to sack him and get him off the premises.
Subsection (5) seems to imply that a false allegation can be made, but as long as it is made in good faith, the person making it is entitled to the continuing protection of the clause. I find that a little odd. An allegation is either false or it is not. How on earth can someone who is facing up to dealing with an employee who is committing gross misbehaviour and who he wants to get rid of form a conclusion? The employee has made a series of the most dreadful false allegations about being discriminated against on the basis of religion or belief, but the employer has to consider whether the allegation was made in good faith; otherwise, if the employee is able subsequently to show that the allegation was made in good faith even though it was false, the employer would still be discriminating against him.
I would be grateful if the Minister would explain how that will work in practice. If he thinks that it might not work well, that might be a good reason to take out the four words in the amendment.

Evan Harris: The hon. Gentleman continues to do the Committee a service, as he has done for other Committees, by raising important issues and being brief about doing so. I disagree with amendment No. 105, but I see what he is getting at.
Amendment No. 107 highlights an interesting point. It will be hard to tell whether an allegation is false before that has been determined, and as the subsection refers to the intention to make a false allegation, we are not even considering a situation in which an allegation has been made. The question is whether it would be  difficult, given that one is already in double conditionality—determining whether there was an intention to make an allegation and whether it was going to be, or was, a false one at that stage—to make the third judgment about whether the allegation was made in good faith.

Alison Seabeck: I share the hon. Gentleman’s confusion about “in good faith” and I hope that the Minister will be able to explain whether there is some legal basis for the use of the term; we need to identify what is good faith.

Evan Harris: I am grateful to the hon. Lady for recognising that it is not just the hon. Member for Beaconsfield who seeks to question the term.
Presumably, there will be a test as to whether something was in good faith and whether an allegation of discrimination under part 2 was reasonable in judging it to be not in good faith, reasonable in judging that there was an intention, and reasonable in judging that that it was a false allegation. The key question for the Minister is whether the words are vested in other anti-discrimination legislation, perhaps in the field of race, and whether, therefore, there is case history that shows whether the words have caused confusion. It is unusual, given the long history of such legislation, for something brand new to have come this far and got through the House of Lords. Subsection (5) is difficult to understand without clarification, and I hope that the Minister will take the opportunity to make it clear what is intended.

Paul Goggins: As the Committee has already noted, the provisions allow for indirect discrimination to be lawful only where the overriding reason for an action is unrelated to a person’s religion or belief. For example, financial considerations might mean that a small business, perhaps a child-minding service, is not in a position to provide kosher food. That would be a function of the fact that it was a small business with limited financial opportunities, not to do with the religious belief of its potential customers. It would be indirect discrimination, but it would justifiable because it had occurred as a consequence of financial and practical considerations, and there was no intention to discriminate against an individual or a potential customer.
The hon. Member for Beaconsfield acknowledges that his amendment might be provocative. I do not envisage any circumstances in which we could justify deliberate indirect discrimination targeted at a particular individual. I accept that the amendment allows for a situation in which the action might be reasonably justified, but we are getting into the difficult territory of subjective judgments about what is reasonably justified and what is not. I hope that the hon. Gentleman, who agrees that it is provocative and probing, has already realised that he might want to withdraw the amendment.
Most of the Committee’s attention has been drawn to amendments Nos. 106 and 107 and potential malicious claims of discrimination. My hon. Friend the Member for Plymouth, Devonport (Alison Seabeck) and the hon. Member for Oxford, West and  Abingdon have asked for further clarification. The proposition is that a claim is either right or wrong. That is too simple. A claim might be malicious, and then right or wrong. The situation is more complex than the hon. Member for Beaconsfield at first indicated.

Dominic Grieve: I am very mindful of that and, from my memory of employment law, I can tell how the clause originated. It is possible for somebody to bring in good faith a claim that turns out not to have been justified. I should not regard it provision for that as improper. Somebody may believe that they have a justifiable grievance, and they may want to have it considered by a tribunal. However, that is slightly different from a false allegation. I find extremely difficult the juxtaposition of a false allegation with an allegation made in good faith.
When one focuses on what the Bill intends to achieve, one sees that we are talking not of the esoteric complexities of employment law, but of precise allegations. If an allegation is false and not mistaken, by its very nature, giving the words their ordinary English meaning, it cannot have been brought in good faith at all. That is why I find the juxtaposition of the two terms so odd. That was the point that I was trying to make.

Paul Goggins: I am sure that the hon. Gentleman will appreciate that the circumstances we envisage are the making of vexatious claims or unjustifiable repeat claims. That is the kind of malicious conduct that we seek to cover. We do not want something that is so defined that it inhibits and discourages people from bringing claims because, from the outset, it may not be 100 per cent. certain that their claim and case can be proved. We have employment tribunals and a judicial process in which judgments can be made about whether an allegation is proven.
We are seeking to rule out situations in which something is clearly malicious. For example, if I were a shopkeeper and somebody continually went around the neighbourhood claiming that I gave a worse service to a particular religious group, it would be utterly ridiculous for me not to be able to discriminate against that person by refusing to serve them whenever they came into my shop. We seek to cover that conduct, and we want to do so in a way that still encourages people to bring claims when they feel that they are justified. The claims will still need to be determined through the due process that we operate within employment legislation and race relations legislation.

Evan Harris: I am grateful to the Minister for coming up with an example, because it is always helpful; I think. However, whose good faith is it? In that example, the person may have had the information on what they consider to be good authority, and they may have had reasonable grounds to think that the action was taking place. They are not acting in bad faith by propagating serious allegations; perhaps they have  attempted to establish the truth and have not received a response. Would the Minister say that the shopkeeper was best advised to wait until the outcome of the allegation before refusing service, or is that just a chance that one takes under this legislation?

Paul Goggins: Of course, in the end all matters are determined in a court of law; but if I were that shopkeeper I should have grounds to justify my conduct. The conduct of someone who went around the neighbourhood spreading malicious rumours and gossip that I was discriminating unfairly against people when I was not would be the grounds on which I could defend my action of discrimination against that individual by refusing to serve them in my shop.
It is possible that I should have to defend the action in court, but I should have a defence. That is the point. Even if people were slightly uncertain, that defence should still mean that people could bring forward a complaint about somebody’s conduct. We want people to come forward with complaints when there may be grounds to believe that unfair discrimination is taking place. It is important to have a fallback position on which people can exert a form of discrimination if they feel that others are spreading malicious gossip about them.
I hope that my explanation, however poor or good, reassures the Committee. The system is the same that has operated in race relations legislation and in other forms of discrimination. It is tried and tested, meaning that we can deal with the malicious person and encourage people who have justifiable grounds to bring a complaint that needs to be tested through a judicial or tribunal process. I hope that in light of that explanation, the hon. Member for Beaconsfield will reconsider and withdraw his amendment.

Dominic Grieve: So far as amendment No. 105 is concerned, I am grateful for the Minister’s comments and agree with them. It was a probing amendment and I do not wish to press it to a Division.
So far as amendment No. 107 is concerned, I continue to have reservations about the wording of the legislation. It is not the first time in Committee that we have examined wording that features in earlier legislation and found it difficult to understand why a particular form of words was used. One of the difficulties is that once wording gets into legislation it tends to stay there for ever, until Parliament is bold enough to try to do something better.
The Minister will not recall this—mercifully so, I suspect he will feel—but I remember doing a piece of Northern Ireland legislation under which the playing of musical or other instruments was banned. When I inquired what another instrument was, none of the civil servants had the slightest clue what was being referred to. We got that deleted, but I think that it had featured in legislation going back over 20 years.
This provision has slightly the same flavour. Subsection (5) states:
“intending to make, not in good faith, a false allegation.”
I do not want to interfere with the way that this has been working in the past. The words “not in good faith” are not necessary to enable the sort of case that  the Minister is troubled with to be adequately covered. That is what it boils down to. Having said that, and in the belief that the Ministers and his advisers might go away and think about this again, which would be quite easy for them to do, I will ask the Committee’s leave to withdraw the amendment.
Before I do so, I shall pick up on the example that was used, where a person decides to ban someone from coming into their shop because they misbehave when they are in there; such a person has shouted, hurled abuse and been difficult with others. The shopkeeper says that they cannot come in, but the person argues that the reason why that is being done is because the shopkeeper knows that they are a Roman Catholic, a Jew or a Sikh. That is the basis. The shopkeeper says that that is nonsense, but he meanwhile has to keep order in the shop. Knowing well that the allegation is false, he wishes to keep the person out. That is the classic sort of illustration, as the Minister says, of where people must be allowed to take decisions.
The wording has got to be seen in that light. That is why I repeat that I have a question mark in my mind about this rather strange phrase
“not in good faith, a false allegation.”
Is it necessary?

Paul Goggins: I have frequent cause to reflect on the contributions of the hon. Gentleman. I am almost certain that we are completely right on this matter, but I undertake to consider it a little further. I will write to him, sending copies of the letter to all members of the Committee, so that we can all be 100 per cent. confident that what we have in place in relation to other legislation applies equally well in this area.

Dominic Grieve: I am grateful to the Minister and I am pleased that I continued talking for another 10 seconds. On that basis, I will not take up any more of the Committee’s time. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.

Evan Harris: I rise to discuss one issue. I accept that we might have an opportunity to deal with it later under new clause 15, which is why I will be brief, but it does fall here and there is a danger that we might not reach it. I will understand if the Minister cannot give me a full answer.
I want to check whether the Minister understands the implication of the change in wording agreed in the House of Lords in relation to A’s religious belief. I think that he will be aware of the debate. In Bill 72, which was presented in the previous Parliament to the Commons, and in this Bill, when it first went to the House of Lords, subsection (1) was differently phrased. Another subsection talked about where the religion was not also A’s religion and where the basis of the discrimination was based on a religion that was not A’s religion. That was subject to some debate and the Government drafted the new wording—in response to probing by my noble Friend Lord Lester—  that we see before us. It is the right wording, but I have a simple question. In the employment regulations, which another clause of this Bill amends, a version of the old wording is used. I wonder whether the Minister might consider it appropriate—given that he understood the doubt about the old wording—to transpose the new version, which is good and clear, to the employment regulations so that there is parity.
The argument is not too complex, but including in parentheses, “whether or not it is also A’s religion or belief” in line 26 makes it clear that it does not exclude A’s religion. Therefore, an orthodox Jew would not be able to discriminate against a progressive Jew. That would also apply to an analogous situation. I understand that the Minister may not be certain, and I should like to be able to read him the wording in the employment regulations, but I would be grateful if he responded to that point.

Paul Goggins: The best way to respond is to promise that when we debate this—[Interruption.] Well, I have every confidence that, under Mrs. Anderson’s chairmanship, we will reach the point in the Bill that the hon. Gentleman wishes to debate. I look forward to discussing it later.

Question put and agreed to.

Clause 44 ordered to stand part of the Bill.

Clause 45 - Goods, facilities and services

Dominic Grieve: I beg to move amendment No. 134, in clause 45, page 27, line 18, leave out from ‘public’ to ‘of’ in line 19.

Janet Anderson: With this it will be convenient to discuss the following amendments:
No. 135, in clause 45, page 27, line 26, leave out subparagraph (ii).
No. 136, in clause 45, page 27, line 31, leave out subparagraph (ii).
No. 137, in clause 45, page 27, line 36, leave out subparagraph (ii).

Dominic Grieve: I seek simply to probe a little on the difference between provision to the public, and provision to a section of the public. I think that I know what that distinction may be, but it would be helpful if we heard from the Minister how he sees that working in practice. The is an argument that, ultimately, when one says that one is providing something to the public, it is inevitably to only a section of the public that wishes to have a particular service. That raises the question as to whether the expression “a section of the public” is not, in fact, otiose. I just wanted the Minister to explain what he has in mind.

Paul Goggins: Clearly, it would be common ground in the Committee that it would be discriminatory if, on grounds of religion or belief, person A provided person B with goods, facilities or services that were of a lesser quality, or on different terms than those on which A would normally provide them to other members of the public. However, it is also the case that  some suppliers of goods, facilities and services choose to provide them in different ways to some sections of the public, for example, by offering preferential terms or discounts to students, the unemployed or old age pensioners.
The Bill would prevent a service provider from offering such discounts to a section of the public—for example, the unemployed—but then, on the grounds of religion or belief, refusing to provide that same service to a prospective customer who fell into that category. For example, if a theatre charged £6 per ticket in general but had a concessionary price for the unemployed of £5, it would be unlawful to charge an unemployed atheist the full price while arguing that that was the price that was generally available to the public. If that atheist were unemployed, they would fall within the category to which the theatre had decided to give a discount, and should be able to enjoy that as much as any other unemployed person. It would be discriminatory to prevent them from receiving that benefit because they held a particular belief.
I hope that the hon. Gentleman will see the merit of the provision. We do not want discrimination of the kind that I have just outlined. Where somebody belonging to a certain group obtains a benefit from a particular provider of goods, facilities or services, they should be able to receive it, and they should not be discriminated against because of their religious or other beliefs.

Dominic Grieve: I am very happy with the Minister’s reply, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve: I beg to move amendment No. 151, in clause 45, page 27, line 39, at end insert
‘but not a boarding house with accommodation for under 12 persons where the owner or his near relatives reside on the premises.’.

Janet Anderson: With this it will be convenient to discuss the following amendments: No. 110, in clause 47, page 28, line 43, leave out subparagraph (i).
No. 111, in clause 47, page 29, line 2, leave out ‘six’ and insert ‘twelve’.
No. 152, in clause 47, page 29, line 18, at end add—
‘(4)For the purposes of this part, “premises” shall include a boarding house or similar establishment with accommodation for under 12 persons.’.

Dominic Grieve: We now come to a part of the Bill that has attracted a certain amount of controversy. In a remark the Minister made earlier when we first started discussing clause 44, I detected him getting his retaliation in first, before anything had been said that might cast aspersions on the Government’s position. I hope that the Minister will relax, and just consider carefully the issue that the Committee needs to grapple with.
I say at the outset that it may well be that the Government’s position on this issue is correct, but there is a matter that requires some thought. There has been comment about the extent to which a person should be allowed to discriminate on grounds of religion or belief in respect of providing accommodation. The starting point for the relevant part of clause 45 is part of clause 47, which some of the amendments in this group address. Clause 47 makes it clear that in terms of a landlord parting with part of premises in which they or a near relative is going to continue to reside, subject to the amount that is parted with being no more than two households or six individuals—this is how the law will be framed—there is an entitlement for discrimination to take place. The philosophical underpinning for that is the belief that when one starts to intrude on to what I would call the private sphere, it is not fair or right to insist that people take into their own homes individuals with whom they may have profound disagreements.
In respect of clause 47, it is clear to me—because there is nothing to suggest otherwise—that the Government envisage that in such circumstances a cash element might be involved in the decision to dispose of or manage parts of premises; in other words, the situation might not be as simple as people inviting guests into their home, because the guests in question might be paying guests.
With that in mind, I turn again to clause 45 and the prohibition on discrimination for goods, facilities and services. It seeks to make a distinction between what is said in clause 47—which I have just touched on, I hope correctly—and what it says in relation to hotels, boarding houses or similar establishments. Clause 45 makes it clear that discrimination cannot be exercised in
“a hotel, boarding house or similar establishment”,
however strongly an individual may feel about a matter. Therefore, this is the question I ask the Minister: how was that distinction arrived at, and what is the basis of the difference?
I think I am right in saying—the Minister will correct me if I am wrong—that a boarding house can be a bed-and-breakfast accommodation; I think he used that phrase. It seems to me that that amounts to little more than the kind of accommodation that is touched on in clause 47. Indeed, to an extent, I have difficulty in drawing the distinction. Where is the dividing line between bed-and-breakfast accommodation and a person who divides their premises with another person? If I say that I will have a paying guest in a room in my house, what is the nature of the services that I would have to provide to change that into a boarding house or similar establishment? Is it a matter of statutory regulation, or some other distinction? I want to tease that issue out from the Minister in Committee today.
The effect of my amendments would be to take a boarding house with fewer than 12 people in it out of the regime of goods, facilities and services and into the exception clause—clause 46—which also raises the issue of whether premises should have as few as six individuals in them in order to qualify for the exception. Six individuals could occupy little more  than three rooms, so if somebody lives in an old mansion and derives some income from paying guests, they may find that they quickly reach that ceiling.
Another thing that caused me problems in definitional terms was what constitutes two households. Again, can the Minister help us? That term seems to be highly flexible; I assume it means a family unit, but it could comprise a large number of people. Could we have more helpful clarification from the Minister about that?
These are probing amendments; I want to make that quite clear to the Minister. Underlying them, however, is an anxiety. I suppose the classic illustration causing that anxiety is that of the elderly person running a small bed-and-breakfast accommodation. There are many such establishments up and down the country. The reality is that people coming into those premises have to live cheek by jowl with the host or hostess within that place—and, frequently, sharing common facilities. To all intents and purposes, it is difficult to see how to distinguish them in any way from someone within the exceptions to clause 46—except, possibly, where the person concerned provides them with breakfast in the morning.
A few minutes ago, the Minister emphatically said that boarding houses must be covered. Although I do not mind that degree of emphasis, will he help the Committee work through its implications for the varied ways in which people provide goods and services? The Government clearly decided—rightly, in my view—that there had to be exceptions to respect personal susceptibilities within the private sphere. But at what point should the line be drawn? Since I am not 100 per cent. clear at what point the line has been drawn, I particularly seek clarification on that.

Paul Goggins: Again, the whole Committee is grateful to the hon. Gentleman for tabling these amendments to open up discussion. Essentially, the amendments that he has made concern where the discrimination line should be drawn when people offer accommodation to other people.
The effect of amendments Nos. 151 and 152 would be that small boarding houses
“with accommodation for under 12 persons”
should be treated as small premises. They would thus be excluded from the prohibition on discrimination. We believe that there is an important distinction between temporary accommodation—such as that provided in boarding houses, bed-and-breakfast accommodation and hotels—and the supply of premises.
Amendments Nos. 151 and 152 would, in effect, mean that providers of bed-and-breakfast facilities could carry on discriminating against Muslims, Hindus or anyone else seeking overnight accommodation from them whose religion they may not like. That is the essential distinction. One is short-term accommodation, usually provided on a nightly basis and similar to a hotel, in that someone is there in a highly transitory way. In the case of premises, however, individuals may be resident for considerable periods and be using premises as their home. Indeed, they may be tenants and have solid legal rights to  remain in that residence. In that instance, the relationship between the landlord and the resident is clearly much more important to both parties than it would be in the provision of bed and breakfast. One, in essence, provides an overnight service; the other provides a long-term home. There is a fundamental difference between the two, and however large or small the boarding house is, it could never fall into the second category, which is more permanent.
On the matter of thresholds, I must be completely honest with the hon. Gentleman and say that it is not entirely certain or clear why the thresholds were chosen.

Alison Seabeck: I am sorry to return to the point that my hon. Friend has just made about the difference between someone who is in accommodation for a longer period and who therefore does not fall into the category of an overnight bed-and-breakfast stay, but there are hotels in certain parts of the country, particularly in coastal areas, that accommodate elderly people who have a bed-and-breakfast, hotel-type service but who are there for very many months. My aunt on my husband’s side was in one such hotel for years until she died. Into which category would someone like that fit? I am sure that there is an answer, but I am not sure into which category that person would fit.

Paul Goggins: I hope that I can answer my hon. Friend’s question. In essence, we want to draw a distinction between the transitory short-term nature of the overnight accommodation provided in bed and breakfast and the arrangement whereby someone opens up their own home to another person long-term. The latter arrangement is very different to short-term bed and breakfast accommodation. That is the difference that we seek to reflect here. I shall think carefully about my hon. Friend’s point. One learns a lot in Committee, and I shall get back to her if I have further thoughts on the matter.
I was explaining to the hon. Member for Beaconsfield that if we are all being completely candid, which of course we are in Committee, it is not entirely clear why the particular thresholds were chosen. It is, however, important to acknowledge that they have worked in other legislation. He is right that we mean family units when we talk about households. I acknowledge that they will be different in size and scale, but we are still are talking about two family units when we talk about two households.
In conclusion, it is worth pointing out that in discussing these issues, we start to enter into the sort of areas that the discrimination law review will doubtless want to consider very carefully, and it is entirely right that we do so. None the less, we stand by the wording of the Bill, which we believe is clear, and I invite the hon. Gentleman to withdraw the amendment.

Dominic Grieve: I shall certainly seek the Committee’s leave to withdraw the amendment. I will reflect on what the Minister said, but I still have the anxiety, which was well encapsulated by the intervention made  by the hon. Member for Plymouth, Devonport, that the distinction that the Government are making is much less clear-cut in practice than one might assume.
The principle of someone providing another person with long-term accommodation, including breakfast on a long-term basis, is very well established. Indeed, one of my relatives lived exactly in the way described by the hon. Lady. Having returned penniless from the middle east in the 1970s as a result of ill health, he spent the next 20 years lodging with a friend of his family’s. He certainly had one meal a day, and, I suspect, was sometimes invited in for other meals of the day. Those meals were provided on a basis that would have fallen into the boarding house category. The relationship was based on an informal understanding and friendship, even though there was payment, yet it would have fallen foul of the legislation. I therefore worry about it.
Equally, I also acknowledge that the Government have a perfectly good point; the line must be drawn somewhere. If the Ritz hotel were to say that it would not accommodate people because it did not like Roman Catholics coming across its portals, most people would think that that was fairly scandalous.
We have, however, to be careful when straying into the private sphere. The Government have recognised that; otherwise they would not have included the saving subsections of clause 47—the exceptions to clause 46. I hope that they will consider whether a wider range of arrangements may not be made, where something approaching bed and breakfast is provided, and that it may be unfair to say to people, “You cannot turn somebody away because you object profoundly to their religion or philosophical beliefs”. If the Minister is willing to reflect on that, I too will do so and see whether there is anything that we need to come back to on Report.
I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Dominic Grieve: I must apologise to the Committee. The Minister said earlier that he wondered where I had drafted the amendments. It is clear that I must have drafted at least one of them, amendment No. 108, with a shaky hand, because it reads like gobbledegook. On looking at it again, I note that if I had written not
“leave out from beginning to first ‘to’ in line 6”,
but “leave out from beginning to first ‘to’ in line 7”, it would have made a great deal more sense.
Before we pass on from the clause, I should like the Minister to consider subsection (3) and help the Committee a little, because I have some anxieties that I was hoping to highlight with the amendment. But with your leave, Mrs. Anderson—and I hope that I do not stray—I hope that we can do so by simply looking at the matter on clause stand part.
Subsection (3) provides a let-out clause. I was about to say that it was the halal butcher’s let-out clause, but I suppose that it might also be the kosher butcher’s let-out clause. It says:
“Where a skill is commonly exercised in different ways in relation to or for the purposes of different religions or beliefs, a person who normally exercises it in relation to or for the purpose of a religion or belief does not contravene subsection (1) by—
(a) insisting on exercising the skill in the way in which he exercises it in relation to or for the purposes of that religion or belief”.
A halal butcher may say, “The way I kill animals for slaughter is without pre-stunning. That is my religion or belief; therefore I must insist on exercising my skill as a butcher in that particular way.” As I understand it, that provides him with a complete let out from the operation of subsection (1), which is the prohibition on discrimination in the provision of facilities and services. To take that issue just a little further, that would presumably apply even where the halal butcher was slaughtering meat that might be provided subsequently to people who were not Muslims.
Then we come to paragraph (b), which currently says that the second exception is if a person
“reasonably considers it impracticable to exercise the skill in that way in relation to or for the purposes of another religion or belief, to refuse to exercise it in relation to or for the purposes of that other religion or belief.”
I detect a double standard creeping in, which means that a halal butcher is entitled to say, “I insist on exercising my skill in a particular way, because my religion requires it”, but Tesco, for example, would have to fulfil the conditions of paragraph (b), which asks whether people have considered whether it is impractical to provide halal meat. I am not sure that that is fair.
If we are saying that if somebody has a religion that requires him to something in a particular way, he is free to do it that way—even if other people might be inconvenienced, such as those who would prefer to eat meat that was not killed in the halal fashion—why should there be the second test, which says that people are exempt only if they reasonably consider it impractical to exercise the skill in that particular way? I find the interrelationship between those two concepts difficult to understand and I would like clarification from the Minister about why both those paragraphs, with slightly different impacts, have been included alongside one another. That is important.
One feature of people saying that they have to exercise a skill in a particular way is undoubtedly that people who may disagree with them, but do not take as much offence as the person concerned, end up having to be subordinated to it. We eat a great deal of halal meat in this country, because in many butchers that is all that is available. The same would apply to kosher food. There is quite an important issue of discrimination and I seek the Minister’s clarification as to why the paragraph is worded as it is.

Evan Harris: I would like the hon. Gentleman, also, to comment on the matter, if he thinks that it is appropriate. The question of skill is interesting, because the distinction applies only if a skill is involved, rather than in instances in which food is  ordered from a wholesaler. In his view, does the clause fail to deal with the question whether a shop or chain of shops is discriminating if certain parts of the community feel that it could, if it chose, provide the food that they want by ordering it from somebody else, but it has chosen not to do so? Should it deal with that question at all? A similar question would apply to a school canteen that failed to provide for the dietary preferences of a certain religion although no skill, as defined here, was involved; it would simply have to order goods from a supplier. Would he care to comment?

Dominic Grieve: The hon. Gentleman goes to the heart of the matter. There is a twofold test. One part is to provide protection for somebody who says, “I have to do something in a particular way; that is my religion or belief.” In the case of halal butchery, it is questionable whether a Muslim has to kill sheep in a particular way because of his faith. The test is, rather, that a Muslim cannot eat meat that has not been killed in a particular way. That raises the interesting question of why paragraph (a) has to be there at all. It is arguable that a Muslim butcher is under no constraint to kill sheep in a particular way so long as the end product is not going to be eaten by Muslims.
On the second point, the hon. Gentleman is right: there is a clear implication that anybody who provides goods or services, such as an ordinary high street butcher, has to ask himself whether it is reasonably practicable for him to organise his business or skill so as to ensure that Muslims can buy meat from his shop. That is why I posed the question. Indeed, amendment No. 108 would remove the middle part of paragraph (b), so that it could also be a defence to say that one refuses to exercise the skill
“in relation to or for the purposes”
of another religion. In a sense, that is the other side of the coin to paragraph (a). However, that is clearly not what the Government intend. We need to tease out from the Minister what the Government want.

Evan Harris: This is a little complicated. I think that my question was on a different point from that being made by the hon. Gentleman. I shall not interfere with any exchange that the Minister may have planned to have on the matter, but I want to ask about the impact of the clause, and this is the time to do it. Would it become incumbent on a school canteen to provide particular types of food to children, or would a high street butcher have to provide certain types of meat to such a community? If it was straightforward for them to do so—if they could get it from another wholesaler and price it accordingly—would the clause make it incumbent on them to do so, or would they run a risk of being accused of committing a tort of discrimination under the clause if they chose not to do so? Skill is a separate issue. I am sure that my question was dealt with in another place, but it would be useful to the Committee for it to be clarified.
I know of a number of people who are concerned about how far they will have to go. I know that the question relates to previous provisions, but I would be grateful if the Minister clarified the point.

Paul Goggins: It is worth making it clear at the outset that the skills involved in the preparation of food are different from the question whether a supermarket should provide particular goods or whether a particular school should provide a certain range of school meals. Supermarkets and schools will take decisions that relate to their customer base, the area that they seek to serve, the children on the school register and so on. However, if they refuse to provide certain goods or services when all the evidence suggests that they should do so, they could be at risk under other provisions of the Bill, but not under subsection (3), which has a narrow significance.
Subsection (3), which the hon. Member for Beaconsfield queried, recognises that in relation to some activities, most notably the preparation of food, some people operate in a particular way and with particular skills, in line with their religious doctrine. That is a serious issue, although my hon. Friends may have noticed I let forth a slight laugh earlier. The hon. Member for Beaconsfield said that this would doubtless be the halal butcher or kosher clause, and at that precise moment I read in my brief that the most obvious example would be kosher and halal butchers. That coincidence brought a smile to my lips. None the less, it is an interesting and serious issue. We certainly would not wish the clause to be used to force those butchers to change their practices for the benefit of other religions.
As always, the hon. Gentleman raises a point that is worthy of further reflection. I am happy to do that, not to ensure that the intention is right—I think that the hon. Gentleman shares our good intentions—but to check whether the wording delivers everything that we want. I want to satisfy myself that it does. I think it does, but I shall reflect further on the matter, and if we feel that the wording needs to be tightened, we will come forward with our thoughts in due course.

Evan Harris: The Minister felt that the point that I raised about school canteens and high street butchers generally providing a service for the community might not be covered in subsection (3), but is it covered elsewhere in the clause? In other words, if a high street butcher operates in an area where there is a potential market, will he be forced to respond to that market? What is the threshold for schools before they will be expected to provide canteen meals for a particular community?
It seems to me that subsection (1) talks of discrimination against person B when the service in question is already being provided to the section of the public to which he belongs. I thought that I understood it, but now I am not sure. I would be grateful if the Minister made absolutely clear which part of the clause applies.

Paul Goggins: Sometimes in our debates, we all end up more confused than we were at the beginning. The important point is that we are trying to ensure that a person’s skills relating to religious observance and practice are not skewed in a particular way because of the wider interests of the community. We must respect  those skills and traditions. In the same spirit in which I made an offer of further reflection to the hon. Member for Beaconsfield, I say to the hon. Member for Oxford, West and Abingdon that I am prepared to take this issue away and reflect further on it to ensure that we have got the wording right.
I am sure that the whole Committee regards the objective as important. We do not want someone with a particular skill or religious belief to be forced to subvert their practice or religious belief because of wider interests. We want to protect that, and they should not be accused of discrimination if they want to protect it. To be certain, I will reflect on the wording and, as I said, if further tightening of the wording is necessary, I will introduce further proposals in due course.

Dominic Grieve: I am grateful to the Minister for what he has said. I apologise to the Committee because the concepts in subsection (3) are not easy to explain and I may not have explained them as well as I had hoped. Paragraph (a) seems to give a complete let-out to someone who, being of a particular religious faith, requires that animals be slaughtered in a particular way. He can say, “I insist on doing it in that fashion because that is what my religion requires.” It seems to me that there is nothing in paragraph (a) to say that his position need be reasonable or not. For example, someone can say, “I am a Muslim. I run a small abattoir and I insist that all the animals that come through my abattoir are slaughtered in a way that is compatible with halal butchery.” That seems to be the end of the matter and that is the let-out.
When we come to paragraph (b), the concept of reasonableness suddenly creeps in. That is what alerted me to the oddity of the two paragraphs together. I shall explain what paragraph (b) seems to be saying. Let us suppose that someone came along and said, for example, to a non-Muslim local meat supplier running a small abattoir that it would be useful if halal meat could be supplied to the town that the supplier served. If they said, “It’s true that my religion or belief does not insist on humane killing, but nevertheless my belief as a Christian is that animals should be made to suffer as little as possible, so I want all my animals to be pre-stunned,” the argument might be, “You’re not being reasonable.” That is why I have anxieties about the way in which the two paragraphs are linked.

Paul Goggins: Just occasionally, some things become clearer during deliberations in Committee. It is true that there is a test of reasonableness in paragraph (b), but the reasonableness relates to the practicality of exercising the skill. For example, if the meat were to be cut in a very restricted place, it might be impractical to serve the wider interests of other, non-Muslim, potential customers of the business. That may be a practical reason that prevents the service from being provided, which would be perfectly reasonable. The reasonableness test relates not to the  exercise of the skill but to the practicality of exercising the skill. That is my understanding, but I will continue to reflect on the matter.

Dominic Grieve: I understand that, but the measure could be used as a lever to force people who may not have strong religious beliefs or any religious beliefs to conform to the views of those who do have a strong religious belief, because it would simply be said, “Well, there is no practical reason why you can’t provide these people with goods and services, namely meat, in the form that they want.” Unless a person could say, “Actually, it is religious scruple that prevents me from doing so, because I insist, on religious grounds, that I must slaughter my meat in a particular way,” they could be required to do it. The impact of the measure would be to force those who ran abattoirs and who had no religious beliefs to provide halal meat even though they might have scruples or anxieties about it and did not particularly want to do it.
As the Minister will know, the question of halal and, indeed, kosher food is controversial. I believe fundamentally—this is my personal view—that it must be allowed, because it covers a religious matter, but if someone were to ask me whether it is better for animals to be pre-stunned or to have their throats cut I should not have the slightest hesitation in saying that I prefer them to be pre-stunned. I detect in the subsection a slight twist against people, which worries me, to force them to provide goods and services in a way that they might not want to do. Not having any strong religious views, they would be told that they had to do so, because it would be unreasonable not to.
That is what I think is wrong and that is why I tabled an amendment to make it clear that reasonableness did not enter into the matter at all. I hope that the Minister will think about that. There is something fundamentally wrong in telling people, “Because there are Jews or Muslims or any other group in society who require some goods or services in a particular way, you, not having any strong religious views on the subject, should be compelled to provide them.” That is a potentially objectionable aspect of the subsection.

Evan Harris: I am grateful to the Minister for agreeing to consider my point. The question I am raising does not relate to the issue of the skill but is a general question: will high street butchers or supermarkets be expected to provide to people who want them certain services that would, potentially and practicably, be available if commercial businesses chose to go into the market? If they do not do so, will they run a risk of being held to have discriminated under the clause? It would be helpful if the Minister could clarify that at some point. I suspect that the clause does not force commercial decisions on commercial organisations, but it is not all that easy to tell.

Question put and agreed to.
Clause 45 ordered to stand part of the Bill.

Clause 46 - Premises

Question proposed, That the clause stand part of the Bill.

Evan Harris: I invite the Minister to clarify what subsection (3) means in plain English. It states:
“It is unlawful for a person to discriminate against another by refusing permission for the disposal of premises to him.”
That is not subject to an exception under clause 47. I presume that it will prevent discrimination in the selling of a property or—and this is what I wanted to check—the renting of a property where the landlord is not living. I raise the point with particular reference to an advertisement that the Minister may be aware of, which attracted some controversy. I think that it was in a Catholic newspaper, and offered a tenancy only to Catholics. That received some attention, about 18 months ago, on the question whether it constituted the sort of discrimination that would not be permitted any more. It is clear that it is caught by the clause and it is not the subject of any exceptions under clause 47(1).

Paul Goggins: I hesitate to comment on the specific example that the hon. Gentleman gave without knowing a little more of the detail. If he has a copy of the advertisement, I would be more than happy to have a look at it and give him my considered view.
Very briefly, subsection (3) relates to a situation in which a person’s permission is required for the disposal of someone else’s interest in a property. Typically, that would be the executor of a will. Where that permission is required for the disposal of premises, to withhold that permission on the grounds of religion or belief would be discriminatory. The provision seeks to rule out such behaviour.

Evan Harris: The Minister answered my question in legal terms—I am not surprised about that. He talked about an executor. I am asking whether subsection (3) covers the disposal of premises—I do not know whether “disposal” is a particular term that relates only to probate matters—when a property is just sold to another person, or someone who is not living on the premises rents the property to another person. What is the difference between subsection (3) and subsection (1)? I guess that it is to do with refusing permission. If the Minister could clarify the meaning of that in normal life, I would be grateful. If I have not made my question clear, I would be happy to discuss it with him outside the Committee, if that would be convenient to the Committee.

Paul Goggins: I am always happy to pursue discussions outside the Committee as well as inside it, but I think that the hon. Gentleman is on to something when he highlights the words “refusing permission”. That is the key thing that the provision seeks to capture. The obvious example is the executor of a will because their permission would be required before a particular property could be disposed of. The hon. Gentleman may be able to think of other circumstances in which that occurs. The executor of a will would be the most common case. We want to  ensure that nobody can stop a sale on the grounds of religion or belief in those circumstances. As I said, I am happy to discuss the matter further outside the Committee if he wishes.

Question put and agreed to.
Clause 46 ordered to stand part of the Bill.

Clause 47 - Section 46: exceptions

Paul Goggins: I beg to move amendment No. 14, in clause 47, page 28, line 36, leave out ‘46(1), (2) and (5)’ and insert ‘46’.

Janet Anderson: With this it will be convenient to discuss the following: Amendment No. 109, in clause 47, page 28, line 36, leave out ‘(5)’ and insert ‘(3)’.
Government amendments Nos. 15 to 19.

Paul Goggins: This is a rare opportunity for me to go first in a debate. Amendments Nos. 14 and 15 stand in the name of my hon. Friend the Minister for Women and Equality. They are minor technical amendments that correct a printing error in the numbering of the clause arising from the removal of the provisions in clause 46 which previously made harassment in the provision of premises unlawful. Amendments Nos. 16 to 19 remove the remaining references to harassment from the immigration exception in clause 51(4). Amendment No. 109, in the name of the hon. Member for Beaconsfield, has exactly the same effect as amendment No. 14—great minds think alike.
Members of the Committee will be aware that the provisions that would have protected people from harassment on the grounds of their religion or belief were removed from the Bill on Third Reading in the other place. These amendments simply complete that process. Amendments Nos. 16 to 19 should not, however, be taken to mean that we support the removal of the harassment provisions from the Bill. We believe that it is wrong and that it should be unlawful for those carrying out public functions or running premises to harass people because of their religion or belief. My noble Friend Baroness Scotland was very clear in the other place that we do not want to see immigration officers, prison officers, landlords and others harassing people on the grounds of religion. There was wide agreement on that principle, although unfortunately not on the wording or the detail of our proposals.
My hon. Friend the Minister for Women and Equality made it clear on Second Reading that we remain convinced of the need to act against harassment on the grounds of religion or belief and that we will consider the question of harassment further as part of the discrimination law review. At this stage, I simply commend these minor technical amendments to the Committee and invite the hon. Member for Beaconsfield not to press amendment No. 109.

Dominic Grieve: I am happy to hear what the Minister has to say, and I will not press amendment No. 109. I am glad that we were thinking alike. It is my practice to read the text of a Bill and table my own amendments before I read anyone else’s. That is why it features. If I had noticed what the Minister had done, I would not have tabled it.

Amendment agreed to.

Amendment made: No. 15, in clause 47, page 29, line 11, leave out ‘(5)’ and insert ‘(3)’.—[Paul Goggins.]

Clause 47, as amended, ordered to stand part of the Bill.

Clause 48 ordered to stand part of the Bill.

Clause 49 - Section 48: exceptions

Evan Harris: I beg to move amendment No. 154, in clause 49, page 30, line 11, leave out ‘(1)’ and insert
‘(1) (a), (1) (b), (1) (c) (i) and (1) (c) (ii)’.

Janet Anderson: With this it will be convenient to discuss the following amendments:
No. 153, in clause 49, page 30, line 31, leave out ‘or (iv)’.
No. 155, in clause 49, page 30, line 33, after ‘curriculum’, insert
‘in relation to religious instruction or religious education’.

Evan Harris: I am grateful for the opportunity to introduce this group of substantive amendments. I knew that I could rely on the hon. Member for Beaconsfield to subject other clauses to the forensic examination that they require. Indeed I saw him drafting his amendments in Committee, while also paying great attention to proceedings and intervening, which is a skill that I have yet to learn. This is an important group of amendments, and I hope that I can make some progress with the intention behind them, if not necessarily being able to change the drafting today.
Clause 48 (1) reads:
“It is unlawful for the responsible body of an educational establishment ... to discriminate against a person—
(a)in the terms on which it offers to admit him as a pupil,
(b)by refusing to accept an application to admit him as a pupil, or
(c)where he is a pupil of the establishment—
(i)in the way in which it affords him access to any benefit, facility or service,
(ii)by refusing him access to a benefit, facility or service,
(iii)by excluding him from the establishment, or
(iv)by subjecting him to any other detriment.”
Clause 49 exempts certain schools from those general provisions not to discriminate. The current wording of clause 49(1) states that the whole of clause 48(1) shall not apply in relation to a list of various schools, which I shall abbreviate to “faith schools”. I hope that the Committee will bear with me, as the category is perhaps a little more complex and wider  than that. Clause 49(2) creates an exemption in respect of some of the provisions that I have just quoted in relation to the content of the curriculum or acts of worship, which I think are taken to be acts of worship organised by the school or educational establishment itself following an amendment to clarify that in the House of Lords.
There is a strong case for saying that those exemptions go too wide. They go beyond what is required to maintain the character of faith schools—that is the term that is used—and it would be better if they were drawn more narrowly to prevent breaches of human rights and occasions of discrimination. There is no good reason why these provisions need to be drawn so widely. Things would be somewhat easier if clear guidance—preferably statutory guidance; I suspect that we will come on to guidance questions later—as to how schools should operate in this respect were provided for all schools, to help them to stay within the Human Rights Act 1998 and avoid discrimination. It would be easier if there were any guidance in this respect—or, indeed, if there were ways to ensure that the Government were being vigilant about unreasonable discrimination, or discrimination that could not be objectively justified.
It is quite difficult for pupils and/or their parents to bring actions. Pupils are just trying to get on with being in school. Therefore, the onus in drafting legislation is to ensure that as there is such a big discrepancy between the power of the school authorities and that of the pupil, great care is taken about discrimination.
My amendments seek to narrow the provision. If we are to have discrimination in admissions on religious grounds, which is a subject for debate another day—we ought to debate it, although we do not do that very well in this House—the exception for subsection (1)(a) of clause 48 should be kept in respect of faith schools, as should the one for subsection (1)(b), which deals with refusing to accept an application, but two provisions should be removed from subsection (1)(c):
“(iii)by excluding him from the establishment, or
(iv)by subjecting him to any other detriment.”
I shall deal with each of those in turn.
Making an exemption from the general duty of discrimination not to expel someone or exclude them on the basis of their religion raises serious issues. Some pupils may decide that they want to change their beliefs while a pupil of a school. I am speaking generally. It is easier in this context to discuss a publicly funded school carrying out a public duty that admits someone on the basis that they are, say, a Catholic. If that person then states that they do not, in fact, subscribe to those religious views and that they must have the freedom to make up their own mind, as indeed must their parents, is it right that they could be excluded or expelled on the basis that they no longer complied with the religious requirement for admission? I do not understand how it would be made clear to both parties that that would not be permitted, but to deprive someone of their education in such an establishment simply on the basis of their changing or losing their religion seems not to be objectively justified.
I do not believe that that would necessarily be a frequent occurrence. One of the arguments about the appropriateness or otherwise of faith schools involves the question of how many children have particularly deep religious beliefs or affiliations. Clearly some do, as do their parents, but that is the sort of thing that we would expect our state education to provide for, so that children feel free and not encumbered by a requirement to change their religion or how they observe it.
The second way in which amendment No. 154 seeks to narrow the exception for faith schools concerns the
“subjecting him to any other detriment”
provision. I am not the only person who believes that that goes too wide. I refer the Committee to the 16th report of Session 2004–05 of the Joint Committee on Human Rights, on the Equality Bill. The report is on the previous Bill in the previous Committee, in the form of Bill 72, which came before the House of Commons. The Joint Committee states in paragraph 49:
“The Bill’s legitimisation of such activity may fail to satisfy the positive obligation, in particular under Article 8 ECHR, to take steps, including adequate legislative provision, to prevent breaches of Convention rights.”
The Joint Committee then makes the following recommendation:
“Whilst we accept that certain differences in treatment on the basis of religion are likely to be justified in the interests of maintaining the character of faith schools and protection of the Article 9 rights of religious bodies, we do not accept that all of the discriminatory treatment which would be permitted under clause 52(1)—
that is clause 49(1) of this Bill—
“including measures imposing ‘any other detriment’ on a pupil because of their religion or belief, could be so justified.”
That report was produced towards the tail end of the last Parliament, so there was not a Government response to it, and because the House of Lords was so busy dealing with the issue of harassment—rightly so, and the Government took the decision to solve that debate by taking it out of the Bill—we have not had sufficiently detailed scrutiny in the House of Lords of the Government’s response to that clear recommendation of the Committee as it was then formed.
Amendment No. 153 is analogous, and seeks to amend clause 49(2), which relates to the exemption given from responsibilities under section 48 to anything done under the content of the curriculum or acts of worship. Already, the Government have seen that it is appropriate to exclude the exclusion provision from the exemption, so that schools will not be able to rely on clause 48(1)(c)(iii) to exclude anyone from the establishment
“in relation to anything done in connection with ... the content of the curriculum, or ... acts of worship”.
I am arguing again that subjecting a pupil to any other detriment on the basis of the content of the curriculum or acts of worship would also be inappropriate. It is not necessary, and runs the risk of making schools believe that they can discriminate disproportionately and in a manner that is not objectively justified. Rather than relying on case law, or long arguments about any guidance that might be  produced, we should seek to have narrow exemptions in that area, when talking about publicly funded bodies that carry out public functions.
Amendment No. 155 seeks to probe why, in clause 49(2)(a), the Government talk about the content about the curriculum generally, rather than just
“in relation to religious restriction or religious education”.
I hope that the amendment that I have tabled inserts that phrase after “curriculum” and before “or”—it is not in the marked-up version of the Bill from which I am reading—because it is in the religious instruction and education parts of the curriculum that a school might seek to say that it was going to teach and have certain emphases on certain religions, and that that might apply generally, or in particular to faith schools. That is a matter for the curriculum, but in relation to other parts of the curriculum, the Government will have to explain why they seek provision for subjecting someone to any other detriment, and not just refusing access to a benefit, facility or service, or for discriminating in the way in which they afford any pupil access to any benefit, facility or service covered by clause 48(1)(c)(i) and (ii).
Those are serious matters, which are subject to a recommendation from the Joint Committee On Human Rights. The Minister and his colleague the Minister for Women and Equality paid due attention to the concerns of that Committee about the Bill. That is right, as the Bill will set up the Commission for Equality and Human Rights—something on which the Joint Committee has a particular focus. I would be grateful if the Minister could provide some reassurance about the points that I have raised.

Paul Goggins: I begin by thanking the hon. Gentleman for the constructive tone in which he has introduced his amendments. I shall explain in a moment why the Government oppose them, but he has well known views in this area, and he has applied his mind in a very focused way to the particular issues in hand. I am not aware of any particular reason why the Government’s response to the report of the Joint Committee on Human Rights would not have been appropriate. My hon. Friend the Minister for Women and Equality and I will look into why there was no response, and will come back to the hon. Gentleman and other members of the Committee on that subject in due course.
The report examined the wider question of the potential exemption of faith schools in general from the protection of this legislation, which is rather different from the kind of exclusion to which the hon. Gentleman has referred in his amendments. He will forgive me for being slightly pedantic about the phrase that he used about the harassment provisions, but the Government did not “remove” those provisions from the Bill. They were removed by his hon. Friends and hon. Members on the Conservative Benches, against the better judgment of the Government. However, we have concluded that it would be better for that matter to go before the discrimination law review and, we hope, for us to achieve a consensus on the way forward.
Amendment No. 155 would clearly confine the curriculum exception to religious instruction and religious education, and amendment No. 153 would not exempt action related to the curriculum or to religious worship that could be regarded as subjecting a pupil to detriment. If either or both amendments were accepted, that would allow claims of discrimination about aspects of the curriculum when the curriculum is broad, fair and well balanced. The provisions are in place to protect the curriculum.
We do not believe that the concept of individual rights should be used by those who may not agree with particular aspects of the curriculum in our schools as a means of challenging existing school policies of inclusiveness and diversity in the curriculum that are set out in statute. The Education Act 2002 provides for a basic curriculum that every maintained school is required to follow. There would be considerable concern if there were a suggestion that the way in which dancing, singing, music, physical education or even science lessons were taught should be changed to avoid challenge on the grounds of the religion or belief of certain children or their parents. That would clearly be unacceptable. However, such challenges would be permitted if the amendments were accepted.

Evan Harris: I understand the Minister’s point. That is why I said that I thought these would be probing amendments. However, could he explain why the term “any other detriment” is required when clause 48(1)(c)(i) and (ii) already refer to preventing a pupil from having access to a benefit, facility or service? What detriments does he hope that the exemption would capture that are not already captured by those sub-paragraphs?

Paul Goggins: One could speculate about the detriments that any individual pupil or family might feel, but they should not have the facility, because they have an objection based on their religion or belief, to challenge aspects of the national curriculum that are agreed and set out in statute. Whatever reason they had would be a matter for them. We do not want schools to be continually engaged in litigation and legal challenge on matters that are beyond their scope to determine, having been determined in statute by Parliament. The amendments would permit that, although I accept that they have been tabled as probing amendments.

Evan Harris: I understand the Minister’s point and I will reflect on it. However, in respect of acts of worship, it is hard to see what detriment someone might feel they were subjected to, given that section 72 of another measure allows pupils to be pulled out of collective acts of worship of the kind referred to in subsection 2(b). Therefore, is it really necessary to provide for that catch-all exemption of “any other detriment” in respect of acts of worship that one does not have to attend, which is different from curricular matters, where there is no similar opt-out for pupils or their parents?

Paul Goggins: The hon. Gentleman is right. There is the opportunity to opt out. However, if the amendments that he has tabled were included in the Bill, it is at least arguable that an individual pupil or family could challenge the holding of the act of worship as being of detriment to them. We do not want that to happen. The policy is set out clearly in statute and in the guidance that goes with it. We do not want individuals who argue that something is of detriment to them to be able to challenge the school and embroil it in all kinds of legal challenge, debate and argument in an unfair and burdensome way. We want to make it clear that we do not want individuals to pursue legal action along those lines.
The hon. Gentleman is right to say that it is all set out in statute and that an individual can opt out of an act of worship. However, he cannot challenge the school for holding an act of worship on the ground that it is of detriment to him.
Amendment No. 154 relates to exceptions for faith schools. During the passage of the Bill, we have made it clear that the part 2 provisions on discrimination on the grounds of religion or belief raise several issues particular to education and that certain exceptions are needed, especially for faith schools whose operation the Bill is not intended to undermine. I acknowledge the constructive way in which the hon. Gentleman put his argument. He has views about faith schools and no doubt he would love to have a further debate about them. However, he restrained himself this morning and focused on one or two particular issues. The Government have no intention under the Bill of reopening the role of faith schools. Faith schools have a right to operate effectively and they must be free to discriminate in certain respects on religious grounds.
Faith schools are therefore currently exempted from the provisions specific to educational establishments. The amendments would remove that exception from two specific areas. They would make it unlawful for faith schools to exclude an existing pupil or to subject an existing pupil to any other detriment on grounds of religion or belief. The main purpose of the provision is to avoid the use of the Bill to allow individuals and particular families to bring complaints about the way in which faith schools are run when, in fact, what is being challenged is a fair and reasonable aspect of the way in which the school is organised. Such action would involve the school in unnecessary time and resources in defending legal challenges.
Faith schools should be able to discriminate in relation to admissions, acts of worship and so on. However, I was struck by the phrase used by the hon. Gentleman when he talked about making sure that we had the appropriate balance between the power of the school authority and the position, the needs and the rights of individual pupils. I wish to offer him some encouragement. I am willing to look a little more closely at the particular issues that he raised. He argued that it was not right for a school to exclude existing pupils on the grounds of religion or belief. Given that a faith school has control over its admissions policy, it is unlikely that there would be many examples of when individuals would switch  religion while they were at school. However, I accept that there is at least a possibility that that would happen and I shall think more clearly about the provisions. The rights of individuals to have continuity of education, association with their peers and other developmental matters are important considerations. I hope that he will be reassured by the fact that I am willing to look carefully at matters to make sure that we have struck the right balance.
We will be issuing guidance in respect of the measures. No doubt we shall discuss them, but elsewhere in the Bill are order-making powers that can add to the exceptions or remove them. Whether or not it will be necessary to do something with the Bill, we shall issue guidance on the matter and watch carefully to see how it is implemented in practice.

Evan Harris: Can the Minister assure the Committee that the guidance produced will be subject to full consultation with those who are not religious in a way that exists extensively for the religious and faith communities that have a particular perspective that they are entitled to have? They feel sincerely that sometimes their views impact on the non-religious in society and it is important at every stage to capture those views. If he can give such an undertaking, it would be of some reassurance.

Paul Goggins: I will happily give that reassurance. At times, I fear that some of my colleagues in the Government might consider that I am a little ambitious when it comes to the issuing of guidance and consultation exercises. I am positively in favour of that, but sometimes I might take such action a little too early in the process. Clearly, guidance cannot be issued until the legislation is settled and measures have been put on to the statute book. I am a great believer in getting the guidance right, not least through the involvement and engagement with groups that have a particular interest in such matters. In respect of the Bill, the groups would include religious groups as well as non-religious groups, such as humanists. Not only would that improve the guidance, but the level of understanding of what legislation is intended to do and what it has the power to do. That approach also avoids the development of myths, which can grow up unnecessarily and damage public confidence. I hope that that reassurance regarding guidance is sufficient. I take this issue seriously.
I hope to give the hon. Gentleman comfort by telling him that we continue to consider these issues carefully. When we first drafted the proposals that we are discussing, they had the back-up of the harassment clauses, which gave us extra confidence that the rights—as he put it—of the individual pupil would be protected. Now that the harassment provisions are no longer part of the legislation, I shall consider whether it is still strong enough to protect those rights, notwithstanding the right of faith schools to operate in an effective way that reflects the ethos of such establishments and of the faiths to which they adhere. With that reassurance, I hope that the hon. Gentleman will be happy to withdraw his amendment.

Evan Harris: I am grateful to the Minister for the content and tone of his remarks. I stress that my pointing out that there has not, as far as I know, been a response to the 16th report was not a criticism. The report probably came out just before the general election was called. The Committee is more than capable of raising with Ministers any concerns that it might have about lack of response; that is not for me to do. I was merely pointing out that because there was no response, it would be worth while seeking a response from the Minister now in semi-formal terms regarding my concern, which raises a point that is relevant to the Bill.
I am grateful for the Minister’s reassurance about guidance. There is an argument that draft guidance can sometimes be made available while a Bill is being scrutinised, but that is not the case here. Therefore, we rely on proper consultation. My point about the need to consult the non-religious is that when dealing with establishments such as faith schools, the natural impulse is to think that any changes will affect the religious, but every exemption given to religious groups—well, not every exemption, but many of the exemptions and special provisions given, appropriately or otherwise, to faith groups—will have implications such as reducing choice or freedom or causing some other detriment to people who are not of a religious group or that religious group. It is important that we policy makers should think beyond people of religion when considering such matters. There are instances in which we are talking about 20 people, of whom 19 might well be religious, but we know that at least 30 per cent. of people say in censuses that they are not religious and that when it comes to observance, the majority are not religious. Their needs should be looked after.
The Minister is correct to point out that the harassment provisions were taken out against the Government’s wishes through a Division in the House of Lords. Part of the worry—I do not want to go into specifics—was that there were wide exclusions in the original Bill, even on harassment, which were then narrowed on Report in the House of Lords after consultations, which seemed, at least originally, to exclude some schools from the need to avoid harassment. I know that the Government thought that they had the balance right by the time that they made those amendments on Report, but the House of Lords was not persuaded of that. Nevertheless, the right not to be harassed still exists because of the implications of the Human Rights Act 1998. The Minister is right to point out that schools will have to have regard to that when operating under the exemptions.
Finally, I am grateful to the Minister for agreeing to consider the issue of exclusion, which is not provided for in subsection (2), but is allowed for elsewhere. I hope that he will consider that carefully. I agree that it may not occur frequently, but even one occurrence of that, or people feeling that they cannot change their religion because of the threat that that might affect their continuation at that school, would be a serious  loss of certain freedoms. In view of the fact that the Minister has agreed to reconsider that small area at least, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve: I beg to move amendment No. 112, in clause 49, page 30, line 38, leave out ‘or repeal’.

Janet Anderson: With this it will be convenient to discuss the following amendments: No. 113, in clause 49, page 30, line 40, leave out paragraph (c).
No. 114, in clause 49, page 31, line 4, leave out paragraph (b).
No. 115, in clause 49, page 31, line 7, leave out paragraph (c).

Dominic Grieve: These amendments concern the power of the Secretary of State by order to amend the legislation, in so far as it provides for the amendment or repeal of exceptions in subsections (1) or (2), for an additional exception to clause 48, and for making
“provision about the construction or application of section 44(3)(d) in relation to section 48.”
Each of those provisions raises different issues. As a general rule, I do not much care for powers that can be made under statutory instrument. After all, we spend a great deal of time in Committee considering the legislation, when the reality is that it can then be changed in important and fundamental particulars merely by a one-and-a-half-hour debate in the House of Commons, with no opportunity to amend the Government’s proposals. Therefore, I would like the Minister to explain why each of these provisions is included in the legislation in their current form, and to justify the necessity for each of them.
Amendment No. 112 deals with subsection (3)(a). I have left open the option for the Secretary of State by order to amend an exception, but not to repeal one. Why do the Government require a power to perform such a repeal by statutory instrument to an exception that has been heavily debated in Parliament?
I feel rather less strongly about additional exceptions, because an addition is different from a repeal, but what about paragraph (c) which refers to “construction”? Can the Minister explain in what circumstances the Government might make provision about
“the construction or application of section 44(3)(d)”?
We addressed that earlier. It is to do with the criteria of discrimination,
“which A cannot reasonably justify by reference to matters other than B’s religion or belief.”
On one showing, that opens up a very considerable hole through which the Government can alter this legislation at will in future.

Evan Harris: I rise to make two points. It is curious that the hon. Gentleman treats repeal and addition differently. Obviously, he is probing and he is entitled to frame his amendments as he wishes, but this relates to the point I raised earlier that every exemption given  for one organisation—in this case it happens to be a faith school—potentially has serious implications for the freedoms and choices of others. In cases involving faith schools, those are implications to do with religion.
The idea that it is okay to add an exception for faith schools under clause 49(1) and a clause 48 exemption, but not to repeal provision for faith schools is open to question. There is a sort of favouritism—I hate to use the term—towards faith groups.

Dominic Grieve: The hon. Gentleman is wrong. I would take the same view if the legislation were intended to provide an exception for faith schools or non-faith schools. It just so happens that in this instance it concerns faith schools. The basic principle is that the state imposes a burden, and there is a profound philosophical difference between the state being able by statutory instrument to impose another burden and the state by statutory instrument being able to remove a burden. That is the basis of the differentiation I make.

Evan Harris: That is a fair argument, which could be balanced by the argument that in the case of repeal both Houses have already agreed what should happen. It could be argued that primary legislation should be necessary to revoke the consent of both Houses. That might not apply to an exception, on which debate had not already taken place, and an affirmative resolution might be appropriate.
That is a relatively minor point, and my other point is also a minor one. I believe that the House of Lords made a similar amendment elsewhere in the Bill to curtail the Government’s ability to make changes of the kind in question by statutory instrument, or at least to ensure that that was done in a certain way. Does the Minister recall that, and would such amendments make the clause consistent with another clause in this part?

Paul Goggins: As the hon. Member for Beaconsfield pointed out, clause 49(3) gives the Secretary of State order-making powers to vary exceptions in the light of experience. I hope that I can reassure him that the Government do not intend to establish powers under this clause that would drive a great hole through the Bill. Far from it. We want a facility to ensure that we can make minor adjustments and amendments to the Bill in the light of experience. Through our engagement with stakeholders across the board we have arrived at a set of well worked proposals that will, largely, work in practice. However, we want to allow ourselves the flexibility and room to improve the measure in the light of experience. Debate on a previous clause showed that there is a need always to maintain the right balance between institutions’ and individuals’ interests. Through experience we may learn to achieve that slightly better than we now envisage.
Amendment No. 112 would remove the power to repeal an exemption. That would render us helpless if, in the light of experience, we discovered that an exemption in the Bill was not having the intended effect and was disadvantaging certain groups. All members of the  Committee would want us to be able to change that. Amendment No. 113 would restrict the power to make changes to the application of the test of reasonable justification in relation to indirect discrimination in schools. I cannot speculate now on what the particular instances might be. If I could see that far into the future, I might have brought them forward for inclusion in the Bill. However, we need the power to make such variation as we learn from experience.
Amendments Nos. 114 and 115 would remove the provisions to allow a degree of flexibility in an exception or clarification that might be needed in different geographical locations. That involves an important point. Education is a devolved matter, but the issue of equality is not, so we need to ensure the right balance between our equality legislation and the different systems for providing education around the United Kingdom. We do not have a one-size-fits-all approach and we need the facility to develop things accordingly.
I know that the hon. Member for Beaconsfield has strong views about order-making powers and I did not think for a minute that he would let an opportunity go by to bring those concerns to the attention of the Committee. However, the affirmative procedure is to be used and both Houses would need to agree any amendments in the normal way. Such opportunities can arouse significant debate in and out of Parliament. All that would be dealt with properly and in consultation with stakeholders, in a coherent and positive way. I hope that notwithstanding his general reservations about order-making powers, the hon. Gentleman will see the merits of those set out in the clause as an opportunity to improve the Bill in the light of experience.

Evan Harris: Will the hon. Gentleman give way?

Paul Goggins: With three words to go, I give way to the hon. Gentleman.

Evan Harris: I am curious about something. I found the other clause that was amended. Clause 65 in the Bill that originally went to the House of Lords stated:
“The Secretary of State may by order amend this Part so as to—
(a)create an exception to a prohibition ... 
(b)vary an exception to a prohibition ... or
(c)remove an exception to a prohibition”.
That is now clause 63 of the Bill, which states that the Secretary may by order only do so to “(a) create an exception”, or “(b) vary an exception”, but not to repeal an exception. I should be interested to know how that now relates to the provisions that we are discussing.
Clause 51(1) is about public authorities. It seems either that the House of Lords decided that they should do only one of the provisions, or that there was a particular reason for reducing the scope in relation to public authorities, but not in relation to the clause under discussion.

Janet Anderson: Order. For the benefit of the Committee, the Minister does not have to answer for what happened in the House of Lords, but if he wishes to do so—

Paul Goggins: That is very kind, Mrs. Anderson. Either the hon. Gentleman is on to something, or he is not. I am not going even to try to respond in detail to  the point that he has just made, but I shall consider it carefully. If he is not on to something, I shall be able to write to him to explain why so that he can relax.
I accept that as legislation is developed between different Houses and at different stages within this House, there are potential inconsistencies in different parts of the Bill. If he is on to something, we shall want to address it. I am grateful to the hon. Gentleman for pointing out what may be an issue. If it is not, I shall be only too happy to write to him to put his mind at rest.

Dominic Grieve: The Minister is, as ever, reassuring in his manner, and in the circumstances I shall not press the amendment to a vote. The hon. Member for Oxford, West and Abingdon rightly highlighted amendments in the other place to a further clause—clause 63, as it now is. I am pleased to see that they took place. They show that it is possible to rein in the Government’s tendency to seek to legislate by statutory instrument. However, the Minister has made a good case for keeping in the Bill the particular statutory instrument powers under discussion, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.
Clause 49 ordered to stand part of the Bill.
Clause 50 ordered to stand part of the Bill.

Clause 51 - Public authorities: general

Dominic Grieve: I beg to move amendment No. 116, in clause 51, page 32, line 12, leave out paragraph (d).

Janet Anderson: With this it will be convenient to discuss the following amendments:
 No. 117, in clause 51, page 32, line 13, leave out paragraph (e).
 No. 118, in clause 51, page 32, line 14, leave out paragraph (f).
 No. 119, in clause 51, page 32, line 15, leave out paragraph (g).

Dominic Grieve: We now come to a clause that is of considerable importance to the Bill. The Minister will tell me if I am wrong, but if I understand it correctly, the duties imposed on public authorities are very much wider than those imposed on other people. Perhaps we should expect that.
The duty spelled out in clause 51 is a duty on the public authority not to do any act that constitutes discrimination as previously defined in clause 44. Clause 51 is not just about the provision of goods and services; it appears to go further than that. The Minister may seek to enlighten the Committee about it.
We then come to the clause’s detail. The first thing that struck me was the exceptions provided in subsection (3). The prohibition on discrimination does not apply to the House of Commons, the House of Lords, the authorities of either Houses of Parliament,  the Security Service, the Secret Intelligence Service or GCHQ, nor to a part of the armed forces of the Crown that is assisting GCHQ.
One problem is the issue of what is a public authority. It would be useful if the Minister could clarify what the Government consider a public authority to be, because it appears that the term can be defined fairly loosely.
It is apparent from the Freedom of Information Act 2000, for example, that the special forces of the Crown and any unit assisting in the operation of GCHQ are already considered not to be a public authority, or are exempt from the status of public authority, which raises the question why that needs to be spelt out specifically in the clause. Equally, the House of Commons is considered to be a public authority under the Act, but not under this Bill.
There is a lack of clarity. The amendments seek to do two things. First, they ask the Minister to say what a public authority is—a question that will crop up over and over again as we discuss the other amendments that I have tabled to the clause. Secondly, they ask him to justify why the Secret Intelligence Service, the Security Service, GCHQ and the armed forces of the Crown that help GCHQ should be exempt.
An exemption may of course apply differently for different reasons. Under the Freedom of Information Act, one can see why certain bodies may be exempt, although it is noteworthy that the Security Service and the Secret Intelligence Service do not seem to be entirely exempt from an application under the Act.
We need to know why the Government believe that those bodies may be required to discriminate on the ground of religion. The same may apply to the House of Commons and the House of Lords, but I rather assumed that it could be said that we are sovereign bodies and therefore entitled to regulate ourselves, so I did not table amendments to that part of the clause.
As a first in our consideration of this rather complex and important clause, the Government need to justify why those bodies have been exempted. Notwithstanding the grandiloquent aims of the legislation, the cynic may say that the Government harbour secret anxieties about certain religions or religious groups, and believe that they should be able to discriminate simply on the ground of religion when considering the most secret matters. I should be grateful if the Minister would comment on that.

Paul Goggins: The hon. Gentleman’s remarks fall into two broad groups. The first is the definition of “public authority”. That has already been debated extensively in another place and will, I am sure, be discussed further in Committee. I draw his attention—although I know that I do not need to—to subsection (2)(a), which defines a public authority as one that
“includes any person who has functions of a public nature”.
Organisations such as local authorities, which are established with a specific public remit, would clearly be regarded as public authorities.
The hon. Gentleman’s question begins to press when he asks whether other groups that may not naturally be regarded as public authorities may on certain occasions be public authorities for the purpose of the law and their responsibilities. That pertains particularly to the question of religious organisations. Would a faith group, for example, be regarded as a public authority? It would not be regarded as a public authority in itself, but a parish group or a faith group that had a contract with a local authority to provide a particular public service because it fitted the local authority’s aims and objectives and accorded with its social objectives, perhaps to provide support to young families or young children, would, in exercising its function as part of the contract, act as a public authority and have the obligations that a public authority would have.

Dominic Grieve: I was aware of subsection (2) and the broad definition, but I am hoping that in the course of debate on an exceptionally important clause we will try to ascertain what the limits and the impact might be. Few would disagree that a religious organisation providing a public service to the wider public must not discriminate in the way in which it does that. A question then arises: to what extent might the fact that it is providing a public service impact on its internal structures, and on what it can and cannot do?
Another example, to which I will return later, is my own inn of court, the Middle Temple, which undoubtedly carries out public functions both as a local authority and in training and validating students for the Bar. Although not a religious organisation as such, it has some overtly religious manifestations to its existence. One of the things that I will be asking the Minister to consider as we progress through today’s debate is to what extent those might be restricted by the operation of clause 51.

Paul Goggins: I am not going to venture an answer to the hon. Gentleman’s specific question at this stage. We are having an important debate, which is a function of the reality that public services in our community are increasingly provided by a range of different organisations. Sometimes provision is by private or voluntary organisations, and at other times it is by the public authorities. That is a healthy state of affairs. Another responsibility that I hold as a Home Office Minister is to encourage the greater delivery of public services by voluntary and community organisations. There is a growing consensus that that is a good thing.
The obligations that go with the provision of a public service are important, and we make it explicit in the Bill that in relation to discrimination on the grounds of religion or belief it carries significant and serious responsibilities. No doubt there will be further opportunity to tease the issue out in Committee and elsewhere, because it is an important one.
It is, however, a leap too far to say that because a faith group or some other voluntary organisation provides a specific service at a particular time, that means that in all circumstances it operates as a public authority. I hope that we will be able to clarify  precisely where the cut-off points are. That is a general issue that pertains to a number of groups of amendments that we will discuss.
Amendments Nos. 116 to 119 would remove from clause 51 the exceptions provided in the clause for the Security Service, the Secret Intelligence Service and GCHQ, and for parts of the armed forces assisting GCHQ in accordance with a requirement of the Secretary of State. All those organisations may be called upon to consider whether individuals of particular religions or people who hold philosophical beliefs may be involved in activities that threaten national security.
 The security services would, of course, then be bound to act to protect national security from any threat that they perceive. Inevitably such activity would involve treating people differently, and religion or belief might well be a part of the reason for that differential treatment.
We think that the potential for harm to those services’ operations that could arise from dealing with challenges under part 2, were such challenges to arise, outweighs the potential for harm caused by the discrimination allowed by these exceptions. Where there are two competing harms, one must make a judgment about which is the greater. The possibility of some form of discrimination is outweighed by a consideration of national security, where lives and whole communities might be at risk.
In this day and age, we must be especially vigilant about national security matters. I know that all members of the Committee will agree with that. The arrangements for exclusion of the security services, and of actions that are justified by the need to safeguard national security, from the prohibition of discrimination are proportionate to the need.

Dominic Grieve: I understand the Minister’s point, but if we go further into this part of the Bill we reach clause 62, which states:
“Nothing in this Part shall make unlawful anything which is done for, and justified by, the purpose of safeguarding national security”,
so why does there have to be an additional exemption for specific security organisations? I infer from that that even without national security implications, the Government take the view that those bodies might have to discriminate on the grounds of religion. It might be uncomfortable to probe such matters, but they are there. One of my reasons for probing is that the Government say, “You shall not discriminate—it is wrong to prevent somebody from coming into your hotel because you do not like his faith or the cut of his jib—but we can do it when it comes to the operation of the security services.” That is a rather odd way of proceeding.
We in this House are supposed to be subject to scrutiny so, inconvenient as it may be—we often tend to let such things through on the nod—I have to tell the Minister that I do not think that he has made his case.  He has the national security defence in clause 62, which is very reasonable, but the subsections before us seek to go further and say that discrimination can take place within certain organisations for reasons that the Government have not specified.

Paul Goggins: I see no contradiction in having specific exceptions as well as a general one. Let me explain: it will give staff in the organisations specified in clause 51 clear confidence about how to proceed. We are talking about balancing two potential harms. We do not say that some discrimination is a good thing. It is a bad thing, but weighed in the balance against the potential of a threat to national security, the need to protect the community outweighs the harm done by the discrimination. The specific exemptions are there so that it is absolutely clear that those institutions and organisations are exempt.
However, we need the general power, too, for private security organisations that are not specifically listed as being exempt because they are not public authorities; only organisations that have a public remit are exempted under clause 51(3). Those organisations—which might have to balance discrimination against national security as part of the overall effort to ensure that we remain a safe society—can be protected by the powers in clause 62, even though they cannot claim exemption under clause 51. The two clauses complement each other; organisations that cannot claim exemption under clause 51 are covered elsewhere. We are balancing two difficult things, not saying that discrimination is all right—it is not; it is a serious matter but it has to be weighed against the greater need to ensure that our society is properly protected.

Dominic Grieve: I hear what the Minister says. There may be a certain inevitability to it, and I do not intend to press the amendment to the vote. However, there is something slightly odd about this. When we introduced employment protection, we made special provision for the security services, enabling people to bring complaints about unfair dismissal and discrimination within their organisations. I think that that has worked well. I appreciate that this is a difficult matter, but the extent of discrimination in the field to which this measure could apply seems very wide. Is that necessary, when it could be dealt with on a national security basis? Notwithstanding what the Minister said, subsection (3) extends beyond that consideration, otherwise it would have spelled it out explicitly.
The matter having been ventilated, I shall go away and think about it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

It being One o’clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at Four o’clock.